Kerala High Court
Darius Lozada Elan vs State Of Kerala on 19 December, 2025
Author: C.S.Dias
Bench: C.S.Dias
2025:KER:98386
CRL.MC NO. 10292 OF 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 19TH DAY OF DECEMBER 2025 / 28TH AGRAHAYANA, 1947
CRL.MC NO. 10292 OF 2025
CRIME NO.14/2025 OF Fort Kochi Police Station, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED 18.10.2025 IN CMP NO.1153 OF
2025 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,ERNAKULAM
PETITIONER/3RD ACCUSED:
DARIUS LOZADA ELAN
AGED 53 YEARS
S/O. ALFONSO D ELAN, PERMANENT RESIDING AT BLOCK 6, LOT
12A SHERWOOD SUBDIVISION AMBAGO, BUTAN CITY,
PHILIPPINES - 8600 PRESENT RESIDING AT : TAJ VIVANTA,
SHANMUGHAM RD, MARINE DRIVE, KOCHI, ERNAKULAM, KERALA.,
PIN - 682011
BY ADVS.
SRI.JIKKU SEBAN GEORGE
SRI.S.RAJEEV
SMT.DEEPTI SUSAN GEORGE
SMT.SHRUTHI BALAKRISHNAN
RESPONDENT/STATE:
STATE OF KERALA
STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF
POLICE, FORT KOCHI COASTAL POLICE STATION, FORT KOCHI,
REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM, PIN - 682031
OTHER PRESENT:
SR.PP.SMT.SEETHA S
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
19.12.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2025:KER:98386
CRL.MC NO. 10292 OF 2025
2
C.S.DIAS, J.
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Crl.M.C. No.10292 OF 2025
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Dated this the 19th day of December, 2025
ORDER
Aggrieved by Annexure F order passed by the Court of the Judicial Magistrate of the First Class - I, Kochi, rejecting the petitioner's application seeking the return of his passport, this Criminal Miscellaneous Case (Crl. M.C) is filed.
2. The petitioner is a citizen of the Philippines. He was employed as the Third Officer on board the Vessel MSC Elsa 3 (IMO No. 91232211) sailing under a Liberian flag. On 25.05.2025, the vessel reportedly sank in the Arabian Sea, west of Thottappally, Alappuzha. Alleging that the vessel sank due to negligent handling by the crew and her containers fell into the sea, which obstructed the navigation channels, caused environmental degradation and adversely impacting traditional fishing activities, the Fort Kochi Coastal Police Station registered Crime No.14/2025 for the commission of the offences punishable under Sections 282, 285, 286, 287 2025:KER:98386 CRL.MC NO. 10292 OF 2025 3 and 288 read with Section 3(5) of the Bharatiya Nyaya Sanhita, 2023.
3. On 12.06.2025, as part of the investigation of the crime, the Investigating Officer seized the passports of five crew members, including that of the petitioner, as evidenced by Annexure B receipt. Simultaneously, treating the incident as a marine casualty, the Director General of Shipping, Ministry of Ports, Government of India (for short, 'DGS'), initiated a parallel statutory inquiry. All the crew members were detained. Subsequently, by Annexure C report, the DGS has informed the Mercantile Marine Department (for brevity, 'MMD') that it had no objection to release all the non-essential crew members of the vessel, while specifying seven essential crew, namely the Master, Chief Officer, Chief Engineer, Second Engineer, ETO, AB and MM, were required to be detained for the investigation. Consequently, 15 non-essential crew members were released and have been permitted to return to their respective countries of origin. Although the petitioner's name was not included in the list, he could not return to his 2025:KER:98386 CRL.MC NO. 10292 OF 2025 4 country because the Investigating Officer retained his passport. Accordingly, the petitioner filed CMP No. 1153/2025 before the above-named Court seeking the return of his passport. However, by Annexure F order, the learned Magistrate has dismissed the application on the findings that the technical cause of the incident can be ascertained upon receipt of the MMD report, and that the petitioner's presence may be necessary for further investigation of the crime. Hence, the petitioner's passport cannot be released to him. Annexure F order is ex-facie erroneous and unsustainable in law.
4. I have heard the learned Counsel for the petitioner and the learned Public Prosecutor.
5. The learned Counsel for the petitioner vehemently argues that, in view of Annexure C letter issued by the DSG, the competent statutory authority to investigate such incidents, explicitly stating that only seven of the essential crew members need to be detained in India and that the petitioner's name not included in the list, and further that the 2025:KER:98386 CRL.MC NO. 10292 OF 2025 5 petitioner is unnecessarily being detained in India since 24.05.2025, without even being named as an accused in the crime, the retention of his passport by the Investigating Officer is arbitrary, high handed and an infringement of his right to life. Therefore, Annexure F order may be set aside, and the petitioner's passport may be released to him, subject to any stringent condition that this Court may impose.
6. The learned Public Prosecutor seriously opposes the Crl. M.C. She submits that the culpability of the crew members can be ascertained only after the receipt of the MMD's report. If the petitioner's passport is returned to him, he may flee the country, and the investigation may get stalled. The Crl. M.C is premature. There is no illegality or error in Annexure F order.
7. The FIR was registered on 11.06.2025, which is now more than six months. Indisputably, the petitioner's passport is retained by the Investigating Officer. The investigation can be completed only upon receipt of the MMD's report. It is not in dispute that, acting on the DGS report, all the non-essential 2025:KER:98386 CRL.MC NO. 10292 OF 2025 6 crew members were permitted to leave India without any objection raised by the Investigating Officer. Significantly, the petitioner's name does not figure in the list of persons to be detained in India. It is only because the Investigating Officer retained the petitioner's passport that the petitioner was precluded from leaving the country. The objection now raised by the prosecution is speculative. The mere possibility that the petitioner may be implicated as an accused in the event of an adverse report being submitted by the MMD, by itself, does not justify an indefinite curtailment of his liberty. A hypothetical apprehension cannot override established principles of fairness, proportionality and personal liberty, especially when the petitioner has already been constrained to remain in India for over seven months.
8. Taking into consideration that the petitioner's name is not included in Annexure C letter, and the crew not included in the letter were permitted to leave India, I am of the definite view that the petitioner is also entitled to a similar benefit, but subject to stringent conditions, which will allay the 2025:KER:98386 CRL.MC NO. 10292 OF 2025 7 apprehension of the Investigating Officer.
In light of the aforesaid discussions and considering the peculiar facts and circumstances of the case, I am inclined to exercise the inherent powers of this Court under Section 528 of the BNSS. Accordingly, I allow the Criminal Miscellaneous Case in the following manner:
(i) Annexure F order is set aside.
(ii) CMP No.1153/2025 is allowed by ordering the
Investigating Officer to return the petitioner's
passport forthwith, subject to the condition that the petitioner executes a bond for Rupees Ten Lakh, with two solvent sureties, one of whom shall be the agent of the vessel, specifically undertaking that the petitioner would co-operate with the investigation, and return to India, if directed by the jurisdictional court or by the Investigating Officer.
(iii) The petitioner shall furnish his permanent address and mobile number in his country by filing an affidavit with the above details before the 2025:KER:98386 CRL.MC NO. 10292 OF 2025 8 jurisdictional court, including agreeing to appear online, if directed by the Investigating Officer.
(iv) The petitioner shall also comply with the conditions in Annexure C release order issued by the DGS, by filing an undertaking before the MMD, Kochi and produce a copy of the same before the Investigating Officer.
(v) In case of any modification/variation/deletion of any of the above conditions, the parties would be at liberty to approach the jurisdictional court for the same.
Sd/-
C.S.DIAS, JUDGE rkc/dkr 2025:KER:98386 CRL.MC NO. 10292 OF 2025 9 APPENDIX OF CRL.MC NO. 10292 OF 2025 PETITIONER ANNEXURES Annexure A A TRUE COPY OF THE FIRST INFORMATION REPORT FIRST INFORMATION REPORT DATED 11.06.2025 IN CRIME NO. 14/2025 OF FORT KOCHI COASTAL POLICE STATION, FORT KOCHI.
Annexure B A TRUE COPY OF THE RECEIPT ISSUED BY THE INSPECTOR OF POLICE, COASTAL POLICE STATION DATED 12.06.2025.
Annexure C A TRUE COPY OF THE LETTER BEARING NUMBER F.NO.25-19012/8/2025-NT-DGS(COMP NO. 34585) ISSUED BY DIRECTORATE GENERAL OF SHIPPING, MINISTRY OF PORTS, SHIPPING AND WATERWAYS, GOVERNMENT OF INDIA TO THE MERCANTILE MARINE DEPARTMENT, KOCHI, DATED 08.08.2025. Annexure D A TRUE COPY OF THE LETTER BEARING NUMBER F. NO. MMD KO-13029/1/2020-NAUTICAL ISSUED BY THE MERCANTILE MARINE DEPARTMENT, KOCHI TO THE MSC SHIP MANAGEMENT LIMITED DATED 13.08.2025.
Annexure E A TRUE COPY OF THE CMP 1153/2025 DATED 18.09.2025 FILED BEFORE THE HON'BLE JUDICIAL FIRST-CLASS MAGISTRATES COURT - I, KOCHI. Annexure F CERTIFIED COPY OF THE ORDER IN CMP NO.1153/2025 OF THE HON'BLE JUDICIAL FIRST- CLASS MAGISTRATES COURT - I, KOCHI DATED 18.10.2025.